On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-02-0362.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 2010
Before Judges Axelrad and R. B. Coleman.
Defendant Damon Sorenson appeals from the July l0, 2009 order of the Law Division denying his petition for post-conviction relief (PCR). He alleged his sentence was excessive, there was prosecutorial misconduct, he did not receive a fair trial, and trial and appellate counsel were ineffective in their handling of the trial, sentencing and his appeal. We affirm.
Following a remand, defendant was retried and convicted by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. On February l0, 2005, Judge Neafsey merged the weapons conviction with the armed robbery conviction and sentenced defendant to a fifteen-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal, challenging the judge's decision to admit his statements into evidence, the jury charge on robbery, and his sentence. We affirmed defendant's conviction and sentence. State v. Sorenson, No. A-5366-04T4 (App. Div. June 19, 2007). We incorporate by reference the procedural and factual history of the case. Id., slip op. at 1-8. The Supreme Court denied defendant's petition for certification on September 20, 2007. State v. Sorenson, 192 N.J. 481 (2007).
This PCR petition ensued and was denied by Judge Neafsey on the record on July l0, 2009, following oral argument, with defendant present. In a pro se submission and that of PCR counsel, defendant claimed: (1) his sentence was excessive because the court failed to credit his military service and consider he had no history of violence and because the mitigating factors outweighed the aggravating ones; (2) his sentence was "cruel and unusual" in violation of the Eighth Amendment; (3) he was deprived of a fair trial by the court failing to dismiss a juror who observed him outside the courtroom in handcuffs, by the prejudicial six day break between two days of trial as it likely allowed the jurors to forget how poorly one of the State's witnesses performed on the stand, and by the court improperly allowing hearsay testimony; and (4) the prosecutor engaged in unprofessional and prejudicial conduct of seeking a sentence that was higher than the plea offer and grossly disproportionate to the offenses.
In a supplemental letter brief, defense counsel submitted the following arguments requested by defendant pursuant to State v. Webster, 187 N.J. 254 (2006): (1) trial and appellate counsel were ineffective in failing to argue more strongly about the mitigating factors on defendant's behalf, which resulted in an excessive sentence; (2) although his record was sanitized, his trial counsel tainted the jury by bringing up specific details of his prior record; and (3) in its jury charge the court improperly continued to use the word "force" but did not properly define the term "as a matter of law" and his trial and appellate counsel were ineffective in not challenging the jury instruction.
Judge Neafsey comprehensively addressed and rejected defendant's arguments. He specifically found defendant's excessive sentencing claims were not a cognizable basis for PCR pursuant to Rule 3:22-2, and defendant's unfair trial claims were procedurally barred pursuant to Rule 3:22-4(a), as all "could have been raised on direct appeal as they are based on issues that occurred at trial." The court also found defendant has failed to establish any of the three exceptions to the procedural bar contained in Rule 3:22-4(a). Judge Neafsey further found defendant's claims of ineffective assistance of counsel to be merely alternative means of arguing non-cognizable, procedurally-barred claims, and thus were also procedurally barred by Rule 3:22-4.
Nevertheless, the judge addressed and rejected each of the allegations of trial error and ineffective assistance of trial and appellate counsel as without substantive merit, and provided a detailed explanation as to why none of the issues were sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, l29 N.J. 451, 462-63 (l992) (To establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.
Defendant essentially raises the same arguments on appeal, asserting:
THE COURT ERRED IN FINDING THAT POST-CONVICTION RELIEF SHOULD BE DENIED ON PROCEDURAL GROUNDS BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL, EFFECTIVE ...